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Judgments of Supreme Court of India and High Courts

Kumar vs State Rep. By on 30 November, 2018

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 30.11.2018

CORAM:

THE HONOURABLE MR.JUSTICE M.DHANDAPANI

Criminal Appeal Nos.164 and 170 of 2008

Kumar .. Appellant in
Crl.A.No.164 of 2008

Bhuvaneshwari .. Appellant in
Crl.A.No.170 of 2008

.. Vs ..

State rep. by
The Inspector of Police
Malliagari Police Station
Thammampatti Taluk
Salem District. .. Respondent in both

Criminal Appeals

COMMON PRAYER: Criminal Appeals filed under Section 374(2)

Cr.P.C., to set aside the Judgment of conviction and sentence of the

learned District and Sessions Judge, Maghila Court at Salem District

dated 06.02.2008 made in S.C.No.336/2006 against the appellants.

For Appellants : Mr.B.Kumar, Senior Counsel
for Mr.T.Muruganantham

For Respondent : Mrs.T.P.Savitha
Government Advocate (Crl. Side)

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COMMON JUDGMENT

These Criminal Appeals have been filed under Section 374(2)

Cr.P.C., by the appellants to set aside the Judgment of conviction

and sentence passed by the learned District and Sessions Judge,

Maghila Court, Salem District, dated 06.02.2008, made in

S.C.No.336/2006.

2.Case of the prosecution is as follows:-

The appellants are A.1 and A.2 respectively. Marriage between

the 1st appellant and the deceased was performed prior to 10 years

of the occurrence. After marriage, they were blessed with two

female children and one male child. The deceased was living with

A.1, in the matrimonial home. After three years of marriage, A.1

had developed illegal intimacy with A.2. As the illegal intimacy was

known, they started torturing the deceased. Hence, the children

were left with the parents of the deceased. Even thereafter, the

deceased continued to live in her matrimonial home. Further, as per

the complaint, the entire money earned by A.1 was spent by A.2

and her husband, for which, there was a continuous quarrel

between the deceased and A.1.

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3.On a fateful day, A.1 scolded the deceased and directed her

to die before he return from work by pouring kerosene or else jump

into the well. Thereby due to continuous torture and cruelty caused

by A.1 and A.2, the deceased poured kerosene on her and set fire.

Immediately, thereafter, in order to save her life, A.1 poured water

on her and taken her to the Government Hospital, Salem, for further

treatment. After 5 days of treatment, the deceased lost her life in

the hospital. P.W.1, who is the mother of the victim filed a

complaint before the respondent police.

4.After receipt of the complaint, the Investigating Officer,

P.W.13, took up the case for investigation and went to the place of

occurrence. He prepared an Observation Mahazar (Ex.P.4), Rough

Sketch (Ex.P.16) and Seizer Mahazar (Ex.P.5) and he also conducted

inquest over the dead body of the deceased, in the presence of the

witnesses and issued Inquest Report (Ex.P.18). After examination

of the Medical Officer (P.W.8) and other witnesses, the Investigating

Officer filed a charge sheet. Thereafter, the case was committed to

the Court of Sessions for trial. The Sessions Court framed charges

against both the accused and proceeded with the trial since, the

accused pleaded not guilty.

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5.In order to prove the case of the prosecution, the

prosecution has examined P.Ws.1 to 17 and marked exhibits Exs.P.1

to 18. On the side of the defence, no witness has been examined

and none of the document was marked.

6.The trial Court, after considering the oral and documentary

evidence, found that the 1st accused guilty under Sections 498 (A)

and 306 IPC and accordingly convicted the 1st accused and

sentenced him to undergo three years Rigorous Imprisonment with

fine of Rs.1,000/- in default to undergo three months Rigorous

Imprisonment for the offence under Section 498-A IPC and to

undergo ten years Rigorous Imprisonment with fine of Rs.1,000/- in

default to undergo three months Rigorous Imprisonment for the

offence under Section 306 IPC. As far as the 2nd accused is

concerned, she was found guilty under Section 306 IPC and

sentenced to undergo five years Rigorous Imprisonment with fine of

Rs.1,000/- in default to undergo three months Rigorous

Imprisonment.

7.Challenging the said order of conviction and sentence, the

appellants/A.1 and A.2 have come up with these appeals

respectively.

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8.Heard the learned counsel appearing for the appellants and

the learned Government Advocate (Criminal Side) appearing for the

respondent.

9.The learned counsel for the appellants would submit that

there is no material whatsoever available on record, to prove the

charges under Section 306 IPC against the accused. Ex.P.15, FIR is

totally contradictory to the evidences of P.Ws.1 and 2, who is the

mother and father of the deceased respectively. Admittedly, the

deceased committed suicide on her husband’s house, whereas the

witnesses examined in this case were residing in a different area.

P.Ws.1 and 2 were also residing in somewhere else. Therefore, the

statements, to the effect, cannot be relied upon by the prosecution.

Further, there is no eye witness to the occurrence.

10.The allegation against the 1st appellant is that, he

demanded dowry and attacked the deceased in a cruel manner.

This statement to the effect that the 1st accused abused the

deceased is an unproved version and cannot be believed. Hence,

the learned counsel prays for acquittal of the accused.

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11.Per contra, the learned Government Advocate (Criminal

Side) would submit that P.Ws.1 and 2, the mother and father

respectively of the deceased have clearly spoken about the frequent

quarrel held between the 1st accused and the deceased, for the past

ten years and the 1st accused had illegal intimacy with the 2nd

accused. The 2nd accused residing opposite to the house of the 1st

accused and along with the 1st accused, continuously tortured the

deceased, which lead to commit suicide of the deceased. In the light

of the above, the prosecution has proved the guilt beyond all

reasonable doubts.

12.The statement of P.W.1, the mother of the deceased,

clearly indicates that the deceased was residing in the matrimonial

home of 1st accused and the 2nd accused residing in the opposite

house of 1st accused and frequently attacked the deceased and

driven away from the matrimonial home to the P.W.1’s house for

collecting money for maintaining his family. In an earlier occasion,

P.Ws.1 and 2 gave Rs.7,000/- for purchasing house to the 1st

accused and the deceased.

13.Prior to one month of the occurrence, the deceased lodged

a complaint before the Athur Police Station, against the 1st accused
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and 2nd accused and the Law Enforcing Agency issued summons and

pacified the matter between the 1st accused and deceased. Based on

the undertaken given by the 1st accused and 2nd accused, they were

released. However, thereafter, P.Ws.1 and 2 heard the news from

the relatives of 1st accused and they reached the hospital to see the

deceased. However, after four days, she became unconscious and

on the fifth day, she lost her life. During treatment, a statement

under Section 164 Cr.P.C., was recorded from P.W.1 and also marked

as Ex.P.12. Further, in this case, P.W.3 and other witnesses who are

relatives of P.W.1 are hearsay witnesses and it is relevant to know

that P.W.10, who is the Sub-Inspector of Police, Athur Police Station

has deposed and confirmed the earlier complaint given by the

deceased against the 1st accused and the 2nd accused. Further, P.W.1

deposed that there was an illegal relationship between 1st accused

and 2nd accused and the entire money earned by the 1st accused

was spent by the husband of the 2nd accused, in order to continue

his relationship with the 2nd accused.

14.It is evident from the records that earlier, accused 1 and 2

had given an undertaken before P.W.10 and the said undertaken

was marked as Ex.P.9. Even on perusal of Ex.P.9, it is clearly

proved that there was illegal intimacy between 1 st and 2nd accused
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and it is also the admitted fact that the children were maintained by

the parents of the deceased.

15. At this juncture, it is relevant to cite here the Judgment of

the Hon’ble Supreme Court in the case of Siddaling Vs. The State

of Karnataka. Para 8 is extracted hereunder:-

“(8) As held in Randhir Singh Vs. State of
Punjab, (2004) 13 SCC 129 vide para 12, abetment
involves a mental process of instigating a person or in
any manner aiding that person in doing of the thing.

Courts should carefully assess the facts of each case
before deciding whether the cruelty meted out to the
victim which induces her to commit suicide. (9) In the
case in hand, the witnesses – P.W.1, P.W.6, P.W.10
and P.W.22 have clearly in their statement stated that
the appellant continued his relation with another
woman. The appellants illicit relation with another
woman would have definitely created the
psychological imbalance to the deceased which lead
her to take the extreme step of committing suicide. It
cannot be said that the appellants act of having illicit
relationship with another woman would not have
affected to negate the ingredients of Sections 306 IPC
(10). In our considered view, based upon the evidence
and also Agreement dated 22nd June 2002, the High
Court has rightly maintained the conviction of the
appellant under Sections 498 (A) and 306 IPC.”
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It is squarely applied to the present case on hand.

16.Even on close perusal of statement recorded under Section

164 Cr.P.C, by the learned Judicial Magistrate – P.W.12, revealed the

illegal relationship between the 1st and 2nd accused. Hence, the

prosecution proved the case beyond reasonable doubt and no contra

evidence available, in order to disprove the prosecution case. Under

these circumstances, this Court have no hesitation to arrive at a

conclusion, that the prosecution has proved the case beyond

reasonable doubt.

17.Now, it has to be considered, whether the sentence

imposed by the trial Court on the appellants/accused 1 and 2 can be

reduced in the background of the above case. The trial Court, has

imposed a punishment of ten years Rigorous Imprisonment against

1st accused and five years Rigorous Imprisonment against 2nd

accused for offence under Section 306 and also imposed three years

Rigorous Imprisonment with fine of Rs.1,000/- in default to undergo

three months Rigorous Imprisonment for the offence under Section

498A I.P.C against 1st accused alone.

18.The learned counsel for the appellants/A.1 and A.2 submit

that after the incident, the 1st accused was mentally affected and he
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became sick and continuously taking treatment for the same. He

would further submit that if ten years of sentence is confirmed, he

may die in the prison hospital itself. The learned counsel would

further submit that A.2, being a lady, and having three children,

some leniency may be shown by this Court regarding the quantum

of punishment. He would further submit that, now there is no

relationship between A.2 and A.1.

19. Considering the request made by the learned Counsel

appearing for the appellants and considering the passage of time

and the facts and circumstances of the case, this Court is inclined to

reduce the sentence of imprisonment imposed on the appellants.

20. In the result, the criminal appeals are partly allowed. The

conviction imposed by the learned District and Sessions Judge,

Mahila Court at Salem District in S.C.No.336 of 2006 dated

06.02.2008 as against the appellants is confirmed, however, the

sentence imposed on the appellants is modified. The sentence of

imprisonment imposed against the appellant in Crl.A.No.164 of 2008

/ A1 for the offence under Section 306 IPC is reduced from 10 years

Rigorous Imprisonment to 4 years Rigorous Imprisonment and the

sentence imposed for the offence under Section 498A is confirmed.
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The sentence of imprisonment imposed against the appellant in

Crl.A.No.170 of 2008 / A2 for the offence under Section 306 IPC is

reduced from 5 years Rigorous Imprisonment to 1 year Rigorous

Imprisonment. The fine amount is confirmed. The Trial Court as

well as the Investigation Officer shall take necessary and

expeditious steps to secure the custody of the appellants / accused

to undergo the remaining period of sentence, if any.

30.11.2018

jer

To

1.The District and Sessions Judge, Maghila Court, Salem District.

2.The Public Prosecutor, High Court of Madras.

3.The Section Officer, Criminal Section, High Court of Madras.

4.The Inspector of Police, Malliagari Police Station
Thammampatti Taluk, Salem District.

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M.DHANDAPANI., J

jer

Criminal Appeal Nos.164
and 170 of 2008

30.11.2018

http://www.judis.nic.in

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